Apex court rules Selangor religious law not against freedom of expression

The Palace of Justice where the Federal Court sits. The Apex court ruled against a petition by ZI Publications and its director Mohd Ezra Mohd Zaid, which had challenged the constitutionality of a Selangor relgious enactment. – The Malaysian Insider file pic, September 28, 2015.The Federal Court today held that a provision in the Selangor criminal religious enactment that restricts freedom of expression is constitutional.

Judge Tan Sri Raus Sharif, who delivered the unanimous judgment of a five-man bench, said the Federal Constitution could not be read in isolation.

He said Article 10 on freedom of expression must be read together with Articles 3 (1) which stated that Islam is the religion of the Federation.

Other clauses Raus referred were Articles 11, 121 and 74.

He said Article 74(2) confers the state assemblies to make laws under the state list.

“So, there is no doubt that state assemblies can make laws that can check on any violation to the precepts of Islam,” he said in dismissing a petition brought by ZI Publications and its director Mohd Ezra Mohd Zaid.

They filed the petition in 2013 to challenge section 16 of the Shariah Criminal Enactment 1995, saying it was invalid and should be struck down.

The petitioners said that only the Malaysian Parliament could impose restrictions on the freedom of expression.

The petitioners said states, including the Selangor government, had ceded their sovereignty to the Federal government and the state constitution following the Federation of Malaya Agreement in 1948.

Ezra was charged in 2013 for an offence under the section for his involvement in the publication of a book "Allah, Love and Liberty" written by Irshad Manji (pic, right).

The Selangor Islamic authorities have taken the position that the book is contrary to Islamic canon law or Hukum Syara.

Under Section 16 of the enactment, any person who prints, publishes, produces, records, disseminates or possesses any book or document for sale which are contrary to the Islamic law is said to have committed an offence punishable by a fine not exceeding RM3,000 or a maximum two years’ jail or both, upon conviction.

In their petition, ZI Publications and Ezra named the Selangor government as respondent. The court later allowed the Federal government and Selangor Islamic Religious Council as respondents.

Raus in the judgment said the bench was of the view that Article 10 must be read harmoniously with other Articles mentioned above.

"The Selangor state assembly was enacting laws to check Muslims violating the precepts of Islam and it is not in violation of the Printing, Presses and Publictions Act 1984 (a Federal law)," he said.

He said it was clear that the state enactment was aimed at controlling religious publications which were against Islam.

"Thus, the assembly was enacting a law within its power. Also what amounts to an offence against the precepts of Islam in not in the Federal list," he added.

He said the punishment meted out for the offence (section 16) was also within the limit set under section 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965.

Raus said Malaysian Muslims were governed by both the general laws enacted by Parliament and also by state assemblies.

"It is also the intention of the framers of the constitution that Muslims are governed by Islamic law. So the Selangor enactment is valid and not ultra vires the Federal constitution," he added.

Ezra, who was present to follow the proceedings, said he was disappointed with the outcome.

"This ruling will have bearing on other pending cases which touched on fundamental liberties stated in the constitution," he said.

He said he would have to face the charge in the religious court which was scheduled for next month.

- TMI